Anderson v Department of Ageing, Disability and Homecare

Case •

[2008] NSWWCCPD 121

•

22 October 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Anderson v Department of Ageing, Disability and Homecare [2008] NSWWCCPD 121
APPELLANT: Lynne Maree Anderson
RESPONDENT: Department of Ageing, Disability and Homecare
INSURER: Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC8417-07
DATE OF ARBITRATOR’S DECISION: 21 May 2008
DATE OF APPEAL DECISION: 22 October 2008
SUBJECT MATTER OF DECISION: Section 65A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady     
HEARING: On the papers
REPRESENTATION: Appellant: Long Howland Lawyers & Advisors
Respondent: McLean Lawyers
ORDERS MADE ON APPEAL:

Paragraphs 1 and 4 of the decision of the Arbitrator, dated 21 May 2008, are revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

  1. On 18 June 2008 Lynne Maree Anderson (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 May 2008.

  1. The Respondent to the Appeal is the Department of Ageing, Disability and Homecare (‘the Respondent’).

  1. The Appellant, who is 39 years of age, commenced employment with the Respondent (then known as the Department of Community Services) as a Residential Care Worker in a Group Home situated at Gunnedah, NSW.  Her duties included assisting in training residents with severe and profound disabilities.  In 1995 the Appellant was appointed House Manager, the duties of which position included both the care of residents and management / administrative duties.  In 1998 the Appellant’s work circumstances led to her transfer to a different Unit in Gunnedah where her duties concerned the care of five clients there resident.  The Appellant was, in February 2004, appointed Network Manager in the Mid North Coast Area, Coffs Harbour.  The Appellant’s duties involved co-ordination of two Respite Services, one in Sawtell and one in Port Macquarie which were attended by 150 clients.  Duties in this position included day to day management of a staff of 20 to 25 members as well as day to day management concerning the conduct of the services.  The Appellant was required to drive between the two services being a round trip of approximately 300 kilometres.

  1. The Appellant performed these duties until 26 July 2004 at which time she ceased work by reason of alleged incapacity resulting from work related injury.  The Respondent received a Notification of Injury in which the “nature of injury” was specified as being “stress, anxiety, back pain” and was stated to have occurred on 22 July 2004.  The Appellant claimed and was paid compensation benefits by her employer which payments were terminated on 3 September 2004. The Appellant’s employment was terminated upon medical grounds on 14 February 2005 following certification by HealthQuest.  The Appellant has not worked since her cessation of work in July 2004.

  1. A dispute arose between the parties as to the Appellant’s entitlement to compensation benefits and an Application to Resolve a Dispute (‘ARD’) was filed in the Commission on her behalf in 2006 being matter WCC11258-2006.  That dispute was the subject of a settlement agreement between the parties and the proceedings in the Commission were discontinued.  The parties’ agreement made provision for payment of outstanding medical expenses and an agreement on the part of the Respondent to meet the cost of ongoing psychiatric medical treatment in terms specified in a document headed “Heads of Agreement” dated 30 October 2006, a copy of which is before the Commission.

  1. A further dispute arose between the parties in 2007 and a second ARD was filed on behalf of the Appellant seeking orders with respect to her entitlement to weekly benefits, medical expenses and lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). That ARD, dated 7 December 2007, specified eight distinct dates of alleged injury however such injuries were not described in Part 4 of that document. The only particulars provided in that document were that the place of injury was “Gunnedah, Coffs Harbour and Port Macquarie” and reference as to the manner in which injury occurred was addressed by a reference to a “Statement dated 28 June 2007” made by the Appellant which was attached to the ARD. A perusal of that Statement indicates that the Appellant’s allegation was that she suffered both orthopaedic and psychological injury in the course of her employment.

  1. The dispute came before an Arbitrator for conciliation/arbitration on 7 March 2008 and 8 April 2008.  A Certificate of Determination issued on 21 May 2008.

THE DECISION UNDER REVIEW

  1. The ‘Certificate of Determination’, dated 21 May 2008 records the Arbitrator’s orders as follows:

“The determination of the Commission in this matter is as follows:

1)There is an award for the Respondent in respect of the Applicant’s claim for psychological injury.

2)There is an award for the Applicant in relation to her claim for injury to her:

(a)   Neck on 23/1/1992, 19/5/1996, 13/1/1994;

(b)   Back, on 5/6/2000 and 21/4/2004.

3)This matter is remitted to the Registrar to organise an assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist of the degree of permanent impairment of:

(a)  the Applicant’s neck, due to injury on 23/1/1992, 19/5/1996, 13/1/1994;

(b)  the Applicant’s back, due to injury on 5/6/2000 and 21/4/2004.

4)The Registrar to also to organise an opinion by the same Approved Medical Specialist in respect of a General Medical Dispute of the Worker’s Incapacity and fitness for employment as a result of the injuries she has sustained to her neck and her back.  The AMS is requested to advise whether the Worker:

(a)Is capable of returning to full time employment?

(b)If so, what restrictions would apply to any employment?

(c)If not, is the Worker fit for part-time work?

(d)Is the Worker fit for alternative employment?  If so, please specify what employment and what, if any, restrictions need to be placed on the Worker in performing those alternative duties?

(e)Is the Worker totally unfit for all duties?

5)The Respondent is to pay the Applicant’s costs as agreed or assessed.

6)I certify that this was a complex matter and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of both the Applicant’s and the Respondent’s costs that a percentage increase of 20% be applied.

A brief statement of reasons for determination, in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006, is attached.”

  1. This appeal is brought in respect of the determination as stated in paragraph (1) of the Certificate of Determination.

ISSUES IN DISPUTE

  1. The issues in dispute in the appeal are whether the Arbitrator erred in:

    (i)entering an award for the Respondent in respect of the Appellant’s claim for psychological injury;

    (ii)failing to refer for assessment to an Approved Medical Specialist (AMS) the degree of permanent impairment suffered by the Appellant as a result of psychological injury;

(iii)misdirecting himself as to the proper application of relevant provisions of the 1987 Act to the relevant facts including, but not limited to, the provisions of section 65A of that Act.

  1. The above summary of issues has been taken from the documentation headed “Submissions on behalf of Appellant” which accompanied the Appellant’s Application.

ON THE PAPERS REVIEW

  1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

  1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

  1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

  1. Section 352(2) of the 1998 Act provides:

“(2)   The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

(a)   at least $5,000 (or such other amount as may be prescribed by the regulations), and

(b)     at least 20% of the amount awarded in the decision appealed against.”

  1. It is submitted on behalf of the Appellant that the monetary threshold specified in section 352(2) has been met. It is argued that the Appellant’s claim in respect of weekly compensation which dates from September 2004 to the present is to be assessed having regard to the ultimate determination as to whether psychological injury had been received as alleged. It is argued that a determination as to the occurrence or otherwise of such psychological injury could have “… a substantial affect on her entitlement to weekly compensation”. It is further argued that the Appellant’s claim concerning psychological injury includes one for of lump sums in respect of whole person impairment and pain and suffering. Reference is made to the evidence of Dr Gertler, Psychiatrist, whose reports are before the Commission in which an assessment of whole person impairment of 19% is opined.

  1. The Appellant advances an alternate argument that “… the Arbitrator has not yet determined the extent of compensation to which the Appellant is entitled …” and reliance is placed upon the principles enunciated in Grimson v Integral Energy [2003] NSWPD 29 (‘Grimson’).

  1. It is submitted on behalf of the Respondent that the thresholds specified in section 352(2) have not been met. It is argued that, given that the Arbitrator “declined to rely upon the report of Dr Gertler” and that the Appellant has not disputed or challenged the Arbitrator’s finding with respect to Dr Gertler’s evidence, there is nothing before the Commission as to quantum of compensation at issue which satisfies the thresholds as specified in that section.

  1. It is further argued on behalf of the Respondent that:

“The evidence that was admitted does not suggest that the Appellant is suffering from an incapacity due to psychological or psychiatric condition ….”

The Respondent proceeds to argue that the absence of such evidence deprives the Appellant of any basis upon which to argue that the threshold specified in the statute has been met.  It is further argued that the decision in Grimson “should be read as to mean particularised and supported by admissible evidence”.

  1. As was stated by Fleming DP in Grimson, the amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.  It may be seen that no monetary award has been made.  In those circumstances, again as stated in Grimson, section 352(2)(b) of the 1998 Act has no application (Grimson at [25]).

  1. The remaining question as to whether the threshold requirement specified in section 352(2)(a) has been satisfied may be determined in the present case by reference to the manner in which the claim has been particularised, the evidence before the Commission which supports such claim and the likelihood of there being a significant consequence as to quantum of compensation benefits which may flow from review of the decision which is the subject of the appeal.

  1. I accept the Appellant’s argument that there is evidence before the Commission, namely that of Dr Akkerman (Psychiatrist), qualified on behalf of the Respondent, that the Appellant’s capacity to work was restricted to between 10 and 20 hours per week in her former employment.  That such reduction in capacity is the result of psychological injury is arguably open by way of inference from the content of Dr Akkerman’s report of 14 November 2007.  Such a level of incapacity, having regard to the period of the claim for weekly payments, arguably involves a monetary sum which meets the subject threshold.

  1. The Appellant’s ARD particularises a lump sum claim in respect of 19% whole person impairment resulting from psychological injury as alleged. The monetary value of such claim is $26,000. It is correct, as argued by the Respondent, that that figure of 19% is founded upon the opinion of Dr Gertler and that evidence was not “relied upon” by the Arbitrator. It is correct that the Appellant, on this appeal, has not specifically challenged the Arbitrator’s approach to assessment of the weight of Dr Gertler’s opinion. The evidence of Dr Gertler was admitted in evidence and remains before the Commission. That evidence has not, as suggested by the Respondent in its submissions, been excluded by the Arbitrator. I am of the opinion, notwithstanding the Arbitrator’s approach to the weight of Dr Gertler’s evidence, that material provides prima facie support for the claim as particularised in the ARD, and that given the magnitude of the claim the amount at issue on this appeal exceeds the threshold as fixed by section 352(2)(a).

  1. The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.

EVIDENCE AND SUBMISSIONS

  1. There is before the Commission a transcript of proceedings conducted before the Arbitrator on 7 and 8 March 2008 (‘transcript’).  That transcript records the oral submissions of Counsel then appearing on behalf of each party.  No oral evidence was adduced at the hearing.  That transcript does not record the evidence which had been admitted.

  1. The Statement of Reasons for Decision (‘Reasons’) which accompanied the Certificate of Determination dated 21 May 2008 does not contain a convenient notation of the totality of the evidence which was admitted before the Arbitrator.  It is clear from the Arbitrator’s summary of the evidence and his expressed reasons for decision that all the documentary evidence attached to the Appellant’s ARD as well as those documents attached to her Application to Admit Late Documents filed with the Registry on 20 March 2008 and a written Supplementary Statement by the Appellant dated 12 March 2008 have been admitted into evidence.  It is also apparent from the state of the record that all those documents attached to the Respondent’s Reply filed 21 December 2007 were admitted in evidence at the hearing. The Commission’s record includes an undated document headed ‘Schedule of Wages’. Reference to this document appears to be made by the Arbitrator at [50] of Reasons.

  1. The Appellant was successful in her claim before the Arbitrator with respect to proof of injury to her neck and back which injuries occurred on the dates particularised in paragraph 2 of the Certificate of Determination.  The question of assessment of any impairment resulting from the orthopaedic injuries as found were referred to be made by an AMS in accordance with Part 7 of the 1998 Act.  No determination as to the Appellant’s entitlement or otherwise to weekly payments was made in the circumstance that the Arbitrator referred questions relating to the Worker’s fitness for employment for assessment by the same AMS. No determination was made with respect to the claim for medical expenses. This omission is unexplained.  The present appeal concerns only the determination by the Arbitrator with respect to entry of an award for the Respondent in respect of the Appellant’s claim for psychological injury.  In the circumstances it is proposed to address only that evidence relevant to the Appellant’s allegation of psychological injury.

  1. The Appellant’s earlier Statement dated 28 June 2007 contains an allegation that between 1991 and 1995 she had suffered abuse, harassment and intimidation by reason of the conduct of a parent of two clients residing at the Group Home.  The Appellant was absent from her place of employment between May 1997 and May 1998 during which time she was on maternity leave.  The Appellant’s Statement proceeds to detail threatening and intimidating conduct of that parent directed to her upon her resumption of work in May 1998.  It is stated that there had been a complaint forwarded to the responsible Minister.  The Statement records that the Appellant suffered at that time from disturbed sleep, crying, depression, anxiety, migraine headaches and vomiting.  The Appellant sought support of her superiors and medical advice from her General Practitioner, Dr Bickerton.  The Appellant consulted a Counsellor at Tamworth.  The Statement records that the harassment continued until August 1998 at which time an abusive “fax” was received from the parent causing a degree of depression which led to continuing crying and an inability to work.  It is stated that the Appellant consulted Dr Bickerton on 27 August 1998 at which time she was certified as being unfit.  It is said that a claim for compensation benefits was accepted by the employer, that the Appellant was admitted to Gunnedah Hospital and that she remained off work for 3 months before again going on maternity leave.

  1. The Appellant’s Statement further records that upon completion of her maternity leave she was unable to return to the Group House and was therefore transferred to another Group Home apparently situated in Hunter Street, that being on 10 January 2000.  The Appellant states that upon resumption of work she continued to experience anxiety and depression however was able to maintain her position at the Hunter Street Group Home.  At about the time of her resumption of work the Respondent’s then Insurer arranged for a medical consultation and examination of the Appellant with Dr Leonard Lee.

  1. The Appellant’s Statement records her appointment as Network Manager for the Mid North Coast Respite Services, Coffs Harbour which occurred in early 2004.  The Appellant’s duties and the nature of her day to day employment is described in detail in her Statement and may be summarised as involving physically demanding work often causing pain and discomfort with respect to her orthopaedic injuries, prolonged driving, onerous managerial duties and dealing with families in crisis, emergency situations and the like.

  1. The Appellant states that a meeting occurred between herself and Ms Jacqui Cannon at which time she was informed that her behaviour “was disappointing”.  The Appellant states that she was shocked and devastated by Ms Cannon’s comments.  The Statement records that on 21 July 2004 whilst travelling to Port Macquarie in the course of her work the Appellant experienced a “depressive episode of uncontrollable crying and anxiety”.  Following this experience the Appellant requested a formal meeting with Ms Cannon which took place on 22 July 2004.  It is stated by the Appellant that “Ms Cannon gave no positive feedback at all nor provided any solutions to the issues raised”.  It appears that that meeting occurred in Port Macquarie following which the Appellant states that she could no longer cope with the work load placed upon her.  The Appellant returned by car to Coffs Harbour at which time she was experiencing a severe migraine headache and significant back pain.  It is stated by the Appellant that she returned home at which time she was crying and had difficulty sleeping, became frightened, anxious and concerned.  The Appellant could not eat, care for herself and lost “all interest in life and functioning”.  The Appellant did not return to work.

  1. The earlier difficulties experienced by the Appellant by reason of the conduct of the parent above mentioned and associated matters is well documented and there is a considerable volume of material including correspondence, briefing notes, copies of faxes and other material which relate to circumstances prevailing in the Appellant’s workplace between 1991 and 1998.

  1. The expert medical evidence upon which the Appellant relied at the hearing may be summarised as follows:-

(i)Report of Dr Paul Cadzow, Psychiatrist dated 8 September 2004.

(ii)Reports of Ms Janet Sainsbury, Consultant Psychologist dated 18 August 2004, 3 August 2005.

(iii)Certificate issued by Dr A Casolin, Medical Director of HealthQuest 3 February 2005.

(iv)Reports of Dr Judy Haines, General Practitioner dated 2 February 2005, 23 March 2005.

(v)Reports of Dr K. Treichel dated 28 November 2006, 18 March 2008.

(vi)Report of Ms Sharon Harding dated 24 January 2007.

(vii)Reports of Dr Robert Gertler, Psychiatrist dated 25 May 2006 (two reports) and 23 August 2007.

Relevant detail of these reports is addressed hereafter.

  1. The documentary evidence relied upon by the Respondent before the Arbitrator relevant to the Appellant’s allegation of psychological injury included the following material:-

(i)Report dated 19 August 2004 from Overland Investigation Service which included Statements by Ms Dawn Bernadette Cannon dated 12 August 2004 and a Statement by the Appellant dated 13 August 2004.

(ii)Copy of Notification of Injury/Illness (undated) relating to injury received by the Appellant on 22 July 2004.

(iii)Copies of correspondence from the Appellant to Dr Haines dated 9 March 2005.

(iv)Copies of correspondence from the Appellant to Dr Cadzow dated 7 May 2005 and 18 May 2005.

(v)Copies of clinical notes produced by Dr Robert Cram.

(vi)Copies of clinical notes produced by Dr Haines.

(vii)Copies of clinical notes produced by Dr Bickerton.

(viii)Copies of clinical notes produced by Dr Cadzow.

(ix)Report of Dr Klaas Akkerman dated 14 November 2007.

Relevant detail of the above mentioned documents is addressed hereafter.

Appellant’s Submissions

  1. It was stated on behalf of the Appellant before the Arbitrator that her claim for weekly payments, medical expenses and lump sum compensation was brought in respect of “multiple orthopaedic injuries” and “psychiatric injury”.  The transcript records (page 1, 7 March 2008) that it was alleged that there was “more than one” psychiatric injury however it was put that “the most important is the injury that happened during 2004 as a result of a change to the Applicant’s position within the Respondent in early 2004”.

  1. The transcript records a prolonged exchange between the Arbitrator and Counsel for the Appellant relating to the state of the evidence.  It appears from those matters raised on behalf of the Appellant that the Respondent’s reliance upon the provisions of section 11A of the 1987 Act may be countered by a consideration of all relevant facts including the onset of her psychiatric symptoms as early as 1998, such being in no way related to action taken on behalf of the employer.  Emphasis was placed upon the circumstances relating to harassment and intimidation experienced by the Appellant in the late 1990’s at the hands of a mother of two clients of the Home.  It was further stated (transcript page 19, line 31):

“… that any action taken by the employer in relation to the psych [sic] injury is a minimal involvement, certainly not the whole or predominant cause.  The history she gives to all the doctors and the history she gives in her Statement is that this is a thing that’s built up.  It first of all started in 1998 with the psychiatric injury, but then, with this change of position in early 2004, she was required to work a lot harder, drive a lot further.  She had pain as well contributing to her increasing anxiety, and she had to look after – it was previously five places; it went to 150.”

  1. Counsel for the Appellant submitted (transcript page 50) that the evidence supported his proposition that the Appellant’s cessation of work in July 2004 came about “… for dual reasons …”.  It was Counsel’s argument that her incapacity at that time was the result of both orthopaedic and psychiatric disability.

  1. It is again recorded (transcript page 51) that submissions were put on behalf of the Appellant that both “the 1998 injury” and the “2004 injury” were “relevant”.  It was put in argument that any reliance upon section 11A could only be relevant to circumstances prevailing in 2004.

  1. Reference to the relevance of the Appellant’s experiences in the course of her employment in and around 1998 were referred to on a number of occasions during the course of exchanges with the Arbitrator as Counsel sought to outline his submissions.  Of significance it is recorded (transcript page 7) where Dr Gertler’s opinion relating to causation of the Appellant’s psychiatric condition was examined:

“ARBITRATOR:  Okay.  I accept that.  So he diagnoses major depression caused by work experience at DOCS, including both the 1998 incident and then the further incident of 2004 and Ms Anderson had become progressively depressed.”

  1. The Appellant, as above noted, has provided written submissions in support of this appeal.  The grounds stated in those submissions are twofold:-

“2.6   GROUNDS OF APPEAL

1. That the Arbitrator misdirected and confused himself regarding the issues relevant to the Appellant’s claim for psychological injury, particularly between entitlement to weekly compensation and section 60 expenses as opposed to entitlement to section 66 compensation.

2. That the Arbitrator erred in law in the application of section 65A of the 1987 Act.”

  1. With respect to the first stated ground of appeal the Appellant submits that the Arbitrator, at paragraph 49 of Reasons:

“comes to the view that the Appellant has suffered from a psychological condition secondary to her ongoing work related back injury, rather than as a result of the Respondent’s unreasonable behaviour.”

  1. It was earlier put in submissions that, at paragraph 41 of Reasons the Arbitrator “preferred the opinion of the treating psychologist Ms Sainsbury …”.

  1. The Appellant submits that the Arbitrator, having accepted the opinion of Ms Sainsbury, proceeded to misdirect himself, or alternatively confused relevant issues, in concluding by way of finding “that the Appellant’s ongoing depressive condition is not related to her employment with the Respondent”.

  1. The Appellant’s argument is developed with an assertion that the Arbitrator has “confused two issues” they being:

“a. whether the Appellant has suffered a psychological injury arising out of or in the course of her employment; and,

b. whether such injury was a “primary” or “secondary” injury for the purposes of section 66 compensation.”

  1. It is put on behalf of the Appellant that the Arbitrator plainly found that the Appellant had suffered a psychological injury arising out of or in the course of her employment. It is put that the Arbitrator’s acceptance of the evidence of Ms Sainsbury would have the consequence that, whilst the Appellant would be entitled to an award in her favour with respect to proof of psychological injury, the evidence of Ms Sainsbury would “result in an award being entered for the Respondent regarding the claimed lump sum compensation in respect of psychological injury …”. This submission, it is clear, is put having regard to the provisions of section 65A of the 1987 Act.

  1. It is submitted that the Arbitrator had erred in entering an award in favour of the Respondent in respect of the alleged psychological injury and it is noted that such award has significant consequences with respect to her claim with respect to incapacity (weekly payments) and her entitlement to recovery of section 60 expenses.

  1. With respect to the second ground of appeal, reference is made in the course of submissions to the definition of “secondary psychological injury” as appears in section 65A(5) of the 1987 Act.

  1. The detail of Ms Sainsbury’s evidence is examined in the course of submissions and it is put that that witness’s view as to causation of the Appellant’s psychological injury was a “mix of events”.  It was earlier stated in submissions that all of those “events” enumerated by Ms Sainsbury were work related and the Appellant’s argument concerning error on the part of the Arbitrator is encapsulated in paragraphs 4 and 5 of Submissions:

“4. It is submitted that, where a worker’s psychological injury results from both employment causes and as a consequence of physical injury, the definition of “secondary psychological injury” in section 65A requires the Arbitrator to find the extent to which the psychological injury has been caused by each. The key phrase in the definition is “to the extent”. This clearly indicates that a psychological injury is not a secondary psychological injury to the extent that it results from primary causes.

5.     It is submitted that the Arbitrator has misdirected himself by only considering whether the Appellant’s psychological injury was “primary” or “secondary”.  Although he accepted that the psychological injury was the result of both the conditions of the Appellant’s employment and secondary to her physical injuries, the Arbitrator at no stage in his decision considered the EXTENT to which it arose as a consequence of either.”

Respondent’s Submissions

  1. The transcript records a number of exchanges between Counsel then appearing on behalf of the Respondent and the Arbitrator. It is clear that the Respondent’s defence to the claim was founded upon a denial of there being any psychological injury and alternatively, that if such injury occurred the Appellant was prevented from recovery of compensation benefits in respect of such alleged injury by reason of the provisions of section 11A of the 1987 Act. It is further recorded, in the alternative to the argument denying injury, that any psychological injury sustained by the Appellant was a “secondary psychological injury” within the meaning of section 65A of the 1987 Act and that, having regard to the terms of that section, the Appellant was not entitled to an award in respect of lump sums as claimed.

  1. The Respondent’s argument with respect to the issue of “psychological injury” was founded, essentially, upon the state of the medical evidence in particular the matters contained in clinical notes recorded by those Medical Practitioners treating the Appellant.  Counsel on behalf of the Respondent sought to contrast the history as recorded in those clinical notes with matters recorded by the Practitioners qualified for the purposes of the litigation.  It was further argued that there were evidentiary deficiencies in the Appellant’s medical case and particular attention was drawn to the absence of any evidence from Dr Cadzow postdating the year 2004.

  1. The Respondent’s argument with respect to the relevance and application of section 11A of the 1987 Act made reference to the evidence of Ms Cannon.  It was argued that Ms Cannon “at all times acted quite properly” and the argument appears to suggest that the Respondent’s conduct was “reasonable action” within the meaning of section 11A.

  1. The Respondent’s argument with respect to the relevance of section 65A of the 1987 Act was perhaps most plainly stated by Counsel during submissions (transcript page 72) where it is recorded:

“My submission is, on the material before you, the only matter you can send to an AMS in respect to any physical injury is the back. In respect to any psychological injury, well, you have to determine whether it’s primary or secondary. If it’s secondary, then there’s no entitlement to section 66, if she got over the 15 per cent. My submission is when you look at all the documents from the treating doctors in ’04 the only conclusion you can really draw is that any depression, if there is any depression, is secondary to the back, and in that regard one would have, in my submission, great difficulty in terms of this witness being a witness of truth.”

  1. The Respondent has furnished Written Submissions in reply on this appeal which are attached to its Notice of Opposition filed on 31 July 2008.  By way of preliminary argument the Respondent, upon reliance of authority there cited, argues that “the review is not a rehearing of the matter”.  It is further stated that the “Arbitrator is not required to refer in detail to the evidence or every fact” and reference is made to the decision of Prestige Property Pty Limited v Rafiq [2006] NSWCCPD 355 (‘Rafiq’) concerning the function of a tribunal of fact with respect to assessment of and decisions founded upon conflicting evidence.

  1. The Respondent argues that there is no basis upon which it could be argued that the Arbitrator misdirected himself or confused himself regarding issues relevant to the Appellant’s claim for psychological injury.

  1. The Respondent’s submissions proceed to address the medical evidence relevant to the Appellant’s allegation of psychological injury and particular attention is directed to the suggested failure on the part of the Appellant to dispute, on this appeal, the Arbitrator’s findings with respect to particular evidence.

  1. It is argued on behalf of the Respondent that the Arbitrator’s acceptance of the evidence of Ms Sainsbury needs to be considered in the context of the Arbitrator’s rejection and expressed dissatisfaction with the evidence of Drs Haines and Gertler. It is argued that the Arbitrator’s reference to matters raised by Dr Akkerman and his statement that there is an absence of evidence in the Appellant’s case which meets the question posed by Dr Akkerman (that being the question why the Appellant’s condition had not improved in the four years she had been away from employment) permitted his conclusion “that employment was not a continuing cause (sic) of the depressive condition”.

  1. With respect to ground 2 raised on behalf of the Appellant, the Respondent seeks to defend the Arbitrator’s reasoning process with respect to the proper construction and application of section 65A of the 1987 Act.

  1. The Respondent makes the point that the Arbitrator had rejected the opinions of Dr Haines and Dr Gertler and that such rejection was not challenged on this appeal.  It was noted in submissions that the rejection of that medical evidence was founded upon the suggested failure of the evidence to meet “the test” relating to standards of proof required of experts proffering an opinion in evidence before tribunals of fact. In that regard the Arbitrator had relied upon the decision of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (‘Makita’).

  1. It is argued by the Respondent that, given the Arbitrator’s rejection of Dr Gertler’s expert opinion as to “impairment” the Appellant was “left without any evidence that she is suffering from any impairment that would lead to a referral (sic) to the matter being referred to an Approved Medical Specialist for assessment”.

  1. The Respondent in the balance of submissions on this appeal addressed the medical evidence including that of Dr Cadzow, Dr Harding, Dr Treichel and Ms Sainsbury.  It is suggested in argument that the factual conclusions reached by the Arbitrator, in particular those as stated in paragraph 49 of Reasons were open to him on the evidence and are not properly open to challenge upon appeal.

  1. It is asserted on behalf of the Respondent that the Appellant has not identified any error of law with respect to the Arbitrator’s application of section 65A and further that the evidence does not support the contention that the Appellant suffered a primary psychological or psychiatric condition.

DISCUSSION AND FINDINGS

  1. This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:

“(5)   An appeal under this section is to be by way of review of the decision appealed against.” 

  1. The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:

“38.  A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider.  See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”

  1. The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:

“30.        A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view.  If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …” 

  1. Before consideration of matters raised in argument it is convenient to note the various issues which required determination by the Arbitrator having regard to the evidence presented by the parties and the manner in which the dispute was conducted before him.  It appears that the following matters were in dispute between the parties:

(i)whether the Appellant had received an injury being a psychological injury (sections 9 and 4 of the 1987 Act);

(ii)whether any such proven psychological injury had resulted in incapacity and if so the extent of that incapacity and its duration;

(iii)whether any proven psychological injury was wholly or predominantly caused by reasonable action take or proposed to be taken by or on behalf of the employer (Respondent) in terms of section 11A of the 1987 Act, and

(iv)whether any proven psychological injury was a secondary psychological injury within the meaning of section 65A of the 1987 Act.

  1. The Arbitrator, following a detailed consideration of the relevant medical evidence, expressed the following conclusions of fact (Reasons [49]):

“49.   In summary, the weight of the medical and other evidence I have reviewed leads me to find that the Applicant had not suffered a psychological injury as the result of the Respondent’s unreasonable behaviour.  But rather that she suffered from a psychological condition secondary to her ongoing work-related back injury.  Her failure to return to work was not due to an unidentified or unexplained relationship to her work activities, but rather a decision to take time out for her family and herself. On that basis I find that the Applicant’s continuing depressive condition is not related to her employment with the Respondent.”

  1. Before reaching the conclusion as stated above the Arbitrator had expressed his acceptance of the opinion of Ms Sainsbury (Reasons [41]) who was first consulted by the Appellant in July 2004.  It was Ms Sainsbury’s view as recorded in her report of 3 August 2005 that:

“…  Ms Anderson appeared to suffer a mental and physical breakdown.  She suffered from anxiety attacks and depression.  She had constant mood swings and days of black despair.  Her condition when I saw her appeared to come from several possible causes.  These include an unreasonable work load requiring considerable country travel and from a back injury sustained during her working life for DADHC.  This back injury was exacerbated by travel and by further lifting.  It then required her to take large amounts of panadeine forte to try to cope day to day.  This would often make her vomit.  The mix of events resulted in depression.  Her position appeared to be exacerbated by an intimidatory management situation and by the insurers requiring contact at one stage many times a day.  It was also not helped by chronic shortage of staff particularly in the area to which she travelled once a week.”

  1. The Arbitrator’s summary of Ms Sainsbury’s opinion as stated by him at Reasons [42] does not fully reflect the views expressed by that witness as to causation. I accept the Appellant’s argument found in paragraph 2.7.2 of Submissions that the “mix of events” addressed by Ms Sainsbury were all “work related or related to the Appellant’s physical work related injuries”.  Acceptance of Ms Sainsbury’s opinion leads, in my view, to the inevitable conclusion that the Appellant has suffered an injury within the meaning of the 1987 Act.

  1. The matters raised by the parties with respect to the third issue, that being section 11A of the 1987 Act, are not specifically addressed by the Arbitrator in the course of his Reasons.  No doubt this omission is explained by his factual conclusion expressed in Reasons at [49] that the Appellant  “… suffered from a psychological condition secondary to her ongoing work related back injury”.  The Arbitrator, however, appears to have touched on the issues raised by the provisions of section 11A when he there observed that the Appellant “had not suffered a psychological injury as the result of the Respondent’s unreasonable behaviour”.

  1. The findings of the Arbitrator as summarised in paragraph [49] of Reasons inevitably lead, as argued on behalf of the Appellant, to the conclusion that the psychological injury was a “secondary psychological injury” within the meaning of section 65A of the 1987 Act. The Arbitrator has failed to consider those questions as to entitlement raised by proper construction and application of the provisions of section 65A given his primary finding as to the occurrence of injury. That oversight constitutes, in my view, an error of law.

  1. Having found injury and apparently dismissing the relevance of section 11A it was the Arbitrator’s task to determine whether any incapacity resulted from that proven injury.  This the Arbitrator has failed to do and I accept the Appellant’s argument that he has misdirected himself as to those issues requiring determination or has failed properly to identify (confused) those issues.  The Arbitrator’s statement that “her failure to return to work was not due to an unidentified or unexplained relationship to her work activities, but rather a decision to take time out for her family and herself” does not address the issue as to whether, at any relevant time, incapacity flowed from the subject injury.

  1. The Arbitrator concluded as above noted that “the Applicant’s continuing depressive condition is not related to her employment with the Respondent”.  That finding fails to address the question as to whether the Appellant suffered incapacity at any relevant time, and associated questions as to the extent ( total or partial) of any incapacity and its duration.

  1. Given the Arbitrator’s acceptance that the Appellant suffered a psychological injury as a result of those matters enumerated by Ms Sainsbury it is clear that a determination needed to be made as to whether such injury was secondary or primary within the meaning of section 65A of the 1987 Act. This question is not, in my view, adequately addressed. The Arbitrator’s statement (Reasons [49]) “…that she suffered from a psychological condition secondary to her ongoing work-related back injury” addresses but part of the evidence of Ms Sainsbury. I accept the Appellant’s submission (submissions re Ground 2, par.5) that “…The Arbitrator at no stage in his decision considered the EXTENT to which it arose as a consequence of either” physical injury and employment conditions.

  1. Much of the argument advanced on behalf of the Respondent on this appeal concerns the state of the medical evidence before the Arbitrator and, in particular, his rejection of the evidence of particular medical witnesses.  In my respectful view those arguments do not address the real issue raised on this appeal namely whether the Arbitrator has correctly directed himself as to the issues raised for determination and with respect to the proper application of principle.  It is correct, as pointed out on behalf of the Respondent, that the Arbitrator’s conclusions concerning the weight of particular evidence was not addressed by the Appellant on this appeal. That cannot, in my view, be considered a criticism of the manner of conduct of this appeal on behalf of the Appellant given that there is revealed in the Arbitrator’s Reasons a fundamental error concerning the identification and resolution of those issues raised for determination.

CONCLUSION

  1. It may be seen that I have concluded that the Arbitrator’s reasoning reveals error on his part. In the circumstances I conclude that the relevant order made with respect to the alleged psychological injury requires revocation. Having regard to all the circumstances I do not consider it appropriate to make a new decision in place of that of the Arbitrator in this appeal. I so conclude given the need for renewed examination of the totality of the evidence and the need for proper attention to be given to the questions raised by the application of section 65A to facts as ultimately proven. I consider the appropriate course is to direct that the matter be remitted to another Arbitrator for determination afresh of all relevant issues concerning the Appellant’s allegation of psychological injury.

  1. I note that the Arbitrator’s orders included a reference to an AMS to determine certain matters concerning capacity for work.  It is my view that such questions may well be addressed by the Arbitrator to whom this matter is assigned for fresh determination.  That is, of course, a matter entirely for the Arbitrator to determine.  The Commission record indicates that the AMS assessments have not been conducted up to this date.  In all the circumstances I consider that the Arbitrator’s order concerning assessment of the Respondent’s fitness for work should be revoked on this appeal given that the Commission’s ultimate findings with respect to the allegation of psychological injury may, as pointed out by the Appellant in submissions, impact upon the question of capacity for work.

DECISION

  1. Paragraphs 1 and 4 of the decision of the Arbitrator dated 21 May 2008, are revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

COSTS

  1. No order as to costs of this appeal.

KEVIN O’GRADY

Acting Deputy President  22 October 2008

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

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